The European Commission has formally requested Italy to modify the
legal framework relating to the acquisition of holdings in, and the
establishment of, retail pharmacies. In the Commission's view, the Italian legal
provisions, as interpreted by the Constitutional Court, are in breach of
Articles 43 and 56 of the EC Treaty concerning respectively the right of
establishment and the free movement of capital in the European Union. In
addition, the Commission has requested that Germany amend its national
legislation on roadworthiness testing centres as it is not compatible with the
right of establishment. The Commission’s requests take the form of
“reasoned opinions”, the second stage in infringement procedures
under Article 226 of the EC Treaty. If the Commission does not receive
satisfactory replies within two months, it may bring these matters before the
Court of Justice. The Commission has also decided to close a series of cases
involving national laws that have been brought into line with EU law on the
right of establishment and the free movement of services. These relate to the
trade-fair and exhibition sector in Italy, privileged access to information for
certain broadcasters in Belgium, media ownership in Greece and aerial
photography in France.

Italy: acquisition of holdings in and the right of establishment of retail
pharmacies

The Italian regulations, as interpreted by the Constitutional Court, prohibit
enterprises involved in or linked to firms involved in the retail pharmaceutical
sector from acquiring holdings in companies running community pharmacies, within
the framework of the current process of privatising community pharmacies in
Italy. These regulations also prohibit natural persons not possessing a
qualification in pharmacy and legal persons not made up of pharmacists from
owning private retail pharmacies.

These restrictions are likely to prevent or hinder operators from other
Member States from buying into or establishing retail pharmacies. They can only
be considered as compatible with the EC Treaty if they are justified by
objectives of general interest and are necessary and proportionate to the
objectives pursued. According to the Italian authorities, these restrictions are
justified by the need to protect public health (for the first restriction by
avoiding conflicts of interest and for the second due to better supervision of
persons dispensing medicine).

However, the Commission feels that the restrictions in question go beyond
what is necessary to meet the public-health objective. The dangers of conflicts
of interest can in fact be avoided by measures other than simply banning
enterprises linked to firms involved in the pharmaceutical distribution sector
from investing in retail pharmacies. As for the ban on non-pharmacists or legal
persons not made up of pharmacists from owning pharmacies, this also goes beyond
what is necessary to safeguard public health, since a requirement stipulating
that a pharmacist must be present to dispense medicine to patients and manage
stocks would be sufficient.

Germany: roadworthiness testing

The Commission has decided to send a reasoned opinion to Germany relating to
authorisation requirements laid down in Annex VIIIb of the Road Traffic
Licensing Regulation.

This Regulation contains authorisation rules requiring: 1) the compulsory
affiliation of at least 60 independent experts exercising this particular
activity on a full-time basis; 2) the exclusive affiliation of such independent
experts; 3) the affiliation and/or employment of a certain number (at most 30)
of experts and/or their employees (as inspection engineers); 4) the
establishment of these experts and/or employees in a particular area of the
German territory.

The Commission considers that these quantitative and qualitative requirements
relating to the internal structure and legal form of such organisations are in
breach of Article 43 of the EC Treaty on freedom of establishment.

Less restrictive measures can be employed for ensuring that periodic
roadworthiness tests are effective and contribute to road safety in general. For
example, the inspection organisation could be required to supervise all testing
personnel and to ensure that its inspection engineers provide appropriate
guarantees for their professional qualifications.

Closed cases

The Commission has decided to close the following cases since the
restrictions previously noted concerning the right of establishment and the
freedom to provide services have been removed.

- Italy: trade fairs and exhibitions

The judgment of the Court of Justice of 15/1/2002 (case C-439/99), delivered
in relation to infringement proceedings initiated by the Commission in 1996,
sanctioned the non-compliance with the freedom to provide services and the
freedom of establishment of a particularly long series of national provisions
laid down in national laws and in the regulations of five regions (Lombardy,
Liguria, Emilia-Romagna, Friuli-Venezia Giula and Veneto) and the Autonomous
Province of Trento. As a result of the Commission’s reasoned opinion on
non-compliance with this judgment (IP/04/885),
the various regional laws have finally been brought into line with the Treaty.

In particular, the Commission had requested amendments to the provisions of
the regional legislation concerning: a) the blanket obligation on operators to
obtain official recognition; b) compliance with particularly strict time limits;
c) the prohibition on trade fairs other than those included in the official
calendar; d) the requirement that the organisation of trade fairs conform to
regional planning objectives; e) the presence of local operators on advisory
committees.

The regulatory and administrative aspects of the new regimes for trade fairs
have also been simplified. In particular, in order to organise a trade fair,
operators are no longer required to be established in Italy, to be enrolled on
an Italian national register or to have obtained prior authorisation.

- Belgium: privileged access to information for certain broadcasters

After the Commission sent a reasoned opinion to Belgium in January 2005,
amendments were made to the Flemish Region’s decree on the freedom of
information, which gave broadcasters approved by the Flemish Community
privileged access to events in the Flemish-speaking region or, under certain
conditions, the Brussels region. These broadcasters benefited from free access
to events, where they were able to record and broadcast short news items, and
they were able to make their own recordings of sporting events, which were even
free of charge if the holder of the exclusive rights had not been approved by
the Flemish Community.

The amendments made to these provisions have put an end to the system that
discriminated against broadcasters established in other Member States. They have
also eliminated the difference in the level of protection of exclusive rights,
which varied according to whether the holder of the rights was approved by the
Flemish Community or not. The Commission has thus been able to close the
infringement case.

- Greece: media ownership

Greek legislation required media companies (television stations, radio
stations, newspapers and magazines) to have registered shares held by
individuals (in the words of the legislation "registered to a natural
person”). With regard to television and radio, one clause stated that
companies lawfully established outside Greece in a country where there was no
obligation that shares be registered to a natural person, could be authorised,
under certain conditions, to hold a small share of the capital of a radio or
television company.

Since these provisions failed to comply with the principles of free
establishment and free movement of capital, the Commission initiated
infringement proceedings against Greece, sending it a letter of formal notice in
July 2005 (IP/05/987).

The Greek legislation referred to in the letter of formal notice was amended
by Law 3314/10.11.2005 to bring it into line with Community law. Therefore, the
infringement proceedings can now be closed.

- France: aerial photography

Under the French Aviation Code (Article D-133-10), only non-French nationals
were required to obtain authorisation to take aerial photographs. In addition,
more complex administrative procedures were laid down for non-residents in
France.

Further to the Commission’s reasoned opinion (IP/04/937),
France adopted:

1) a new Ministry-of-Transport Decree (No. 2005/865 of 27/7/2005), which
amended Article D133-10 of the Civil Aviation Code by removing the requirement
for prior authorisation to take aerial photographs (and more generally to record
images and data) and introduced a system whereby a simple declaration is made
(at the latest 15 days before aviation activities begin), regardless of
nationality; persons living outside France must submit this declaration to the
civil aviation authorities in Paris;

2) a new Order from the same Ministry (of 27/7/2005), applying the
above-mentioned Article of the Civil Aviation Code, which sets out the practical
arrangements for submitting this declaration, with the form attached to submit
the prior declaration (also possible by electronic means).

Given that the discriminatory aspects of the original legislation have been
removed and in view of the administrative simplification of the regime for
operators interested in aerial photography, the Commission has decided that this
case should be closed.